Scott Ludlam Mess Scores Four Bob Days Out Of Five

Well here we go again.  After the departures of Senators-who-sort-of-never-were Rod Culleton and Bob Day we've lost another one.  After nine years in the Senate, one of the sharper minds in the place, Greens Senator Scott Ludlam, has suddenly realised he has been a dual New Zealand citizen all along and was never validly elected in the first place.  That sound you heard all afternoon was at least 200,000 Greens supporters banging their heads on the nearest available tree in disbelief.  As for me, I was so distracted by this situation that I needlessly got off a bus in the middle of Hobart city, forgetting it continued past a common stopping point to much closer to home.  No problem though, since I then managed to beat the bus to its next stop on foot and catch the same bus again.  Ludlam's path to getting his seat back, should he want to, would be rather less straightforward.

For the most part this one is a familiar situation.  Although Ludlam has resigned, the fact that he has raised eligibility issues as his reason for doing so should prompt an immediate referral to the Court of Disputed Returns (the High Court in theory though it may well get kicked downstairs to the Federal Court if there are no new legal issues) to determine whether Ludlam was validly elected in the first place (to which the answer is evidently no) and to supervise the filling of the vacancy.  The vacancy will be filled by a recount (called a "special count") as with the vacancies for Day and Culleton.  The Greens won two seats in the original election and in the Culleton recount, beating the WA Nationals' Kado Muir by 25175 votes in both cases.  The recount could shave a few thousand off this (about 2800 personal votes for Ludlam leak out of the Greens ticket based on the original counts) but there's no doubt the Greens would keep two seats.  One of these will be their other existing Senator, Rachel Siewert, and the other will be the third candidate on the original ticket, Jordon Steele-John.

However this recount does raise some new ground. Firstly it's the first time a state will have had to be recounted for two disqualifications from the same election, meaning that the new count will be without both Culleton and Ludlam. Secondly and more interestingly, it creates previously unseen complications with the original allocation of three and six year terms. Scott Ludlam was elected third in 2016 with Rachel Siewert elected 12th.  In the special count to replace Ludlam, Siewert will be elected third and Steele-John will be elected 12th.  So if Steele-John replaces Ludlam and serves out Ludlam's term, then this will create a bizarre situation of the candidate second on the Greens ticket being a Senator for three years while the third candidate on the ticket is a Senator for the balance of six, clearly not the preference of the party's voters.



The original motion passed by the Senate to allocate the terms was:

That, pursuant to section 13 of the Constitution, the senators chosen for each state be divided into two classes, as follows:
(1) Senators listed at positions 7 to 12 on the certificate of election of senators for each state shall be allocated to the first class and receive 3 year terms.
(2) Senators listed at positions 1 to 6 on the certificate of election of senators for each state shall be allocated to the second class and receive 6 year terms.

Section 13 of the Constitution refers to the Senate meeting after each election to allocate seats but does not contain any explicit instrument for revising the allocation should it be needed to revise it. In some hypothetical cases it could be necessary to do so - multiple Senators serving different term lengths might be disqualified at the same time (or one might be disqualified and another unelected as a result, as in the Melbourne City Council Michael Caiafa case) and it might not be possible to clearly identify who had taken whose seat from the original count.  Mostly the opinions I am seeing are that the Senate can (and/or will have to) recommit the matter and could make a fresh decision on the term lengths, but I have not yet seen anything from anyone known to me as a constitutional law expert on it.  [Update: See comments - there is significant doubt about whether a decision to reallocate Siewert's term would be constitutional.]

An important aspect of this situation is the pickle it puts the potential replacement in.  Jordon Steele-John is a 22-year old student who works in disability advocacy (for what hours or pay is not stated) and now appears to have a lucrative job opportunity should things pan out as it seems they will.  But if Ludlam wanted his seat back and the Greens wanted Ludlam to have the seat, or if the Greens wanted it to go to someone else for some reason, Steele-John would be in a very difficult situation (as was Irina Dunn, who took the seat vacated by Robert Wood's ineligibility and was kicked out of her party for her troubles).

So far, Steele-John has posted that he would want the seat to go back to the party for a decision (which would have a similar effect to a casual vacancy, assuming the WA Parliament did the right thing and backed the party's proposed replacement).  As the party might well then decide that he should keep the seat anyway, this doesn't necessarily mean he doesn't want the seat or that it will necessarily create a casual vacancy.  (If the party decided they wanted him to keep it then there would be no point in him resigning.)  At least it appears that he is eligible as he renounced his UK citizenship at age eighteen.  The Alanis factor in that one has got to hurt.  [Update: Despite earlier reports that he was not going to take up the seat, Steele-John has now said he is taking it and has the party's support to do so.]

In ten years, Scott Ludlam was elected to the Senate four times - 2007, 2013, 2014, 2016.  Second candidates who could have replaced him on recounts had the issue been discovered earlier were Alison Xamon in his first term and Dr Christine Cunningham in his second.  Kate Davis was the Greens #2 candidate in the original 2013 election but that election was voided.  Had it not been voided because of a loss of ballot papers combined with problems with the old Group Ticket system, there is even a scenario in which Ludlam's ineligibility might have caused the Greens to lose his seat altogether and unelected another party (albeit only the Sports Party) in the process.

The loss of Ludlam, if more than temporary, is a disaster for a federal Greens party already struggling with internal process issues that to this observer have been farcical (if they're really unlucky I will write about that soon).  Even if it is only temporary, it is highly embarrassing.  The right, to whom Ludlam has long been a particularly sarcastic bane, has been gleeful in response and has had a lot of fun pointing out that Ludlam had rubbed it in when Bob Day was rubbed out.

It raises the question: in the absence of any change to the Constitution to change these rules, or any electoral law change to require candidates to declare status (see Michael Maley's submission here), when will political parties learn?  This has been a known issue for decades.  How hard is it to do due diligence on all candidates before preselection by asking them simple things like "Were you born in another country?" and "If yes, what precise steps did you take to renounce your citizenship of that country?"  This shouldn't have been picked up by a member of the general public searching New Zealand records after ten years.  The party, as well as the candidate, should have been on to it.  Why weren't they?

See also Antony Green.

Update 19 July: Another One's Gone!

Astonishingly the Greens have - at least for now - lost a second Senator in the same manner with Queensland Senator Larissa Waters also resigning after finding she was a dual citizen of Canada.  This one raises no electoral complications - assuming a special count is ordered as per usual, former Democrats leader Andrew Bartlett will win the seat.  It also doesn't unsettle any of the other seat results. It is unclear whether Bartlett would take the seat or resign so Waters could be reappointed or so someone else could take it.

What this twin disaster does do is indicate a staggering degree of incompetence and complacency, over a long period, in candidate screening by the Greens. So out comes Bob Brown with excuses about the Greens being mainly reliant on volunteers - which may not be true anyway - but even if it is true ignores the fact that the Greens have a particularly enthusiastic volunteer base including a lot of very capable and educated people.  Where Brown may be getting closer to the problem is in his interview with Emma Alberici where he refers to the lack of central federal control in the party, such that the Tasmanian branch might have been across such issues but have had no way of ensuring other branches were.  (Whether those who understood the problem communicated it with other states properly then is a rock that hasn't yet been turned over here.)  This weak federalism of the Greens is also a large component of the Lee Rhiannon mess.  It's a coincidence that those issues have shown up at about the same time, but it's not a coincidence that they have both happened.

Predictably for Brown, those who quite reasonably use the Greens' inability to get their facts right on eligibility as a proxy for factual inaccuracy on other things are "involved in a venal and nasty and hateful sort of politics - knock everybody down, kick them as best you can, never let a sucker have a go, as the old saying goes." In other words they are just like St Bob on his environmental crusades against a wide range of demonised industries, except that they have a valid argument, which St Bob frequently doesn't.

It was also interesting to see this on the Facebook page of the Byron Greens:

This post has the same structure as the final paragraph of my original article, even including some of the same words like "due diligence" and "simple", but it shifts the blame from the poster's own hapless party to the Australian Electoral Commission.  Whether this is plagiarism of a sort or just coincidence (I don't know which) it is unreasonable to accuse the AEC of sloppiness for not discharging an electoral burden that the law doesn't give it.  And as Antony Green points out, it is a bad idea for the AEC to be charged with candidate screening anyway.  In the form stated by the Byron Greens above, Waters and Ludlam would both have just answered "yes" to question 2 and known no better.

Meanwhile debate about whether Section 44 needs fixing (which can only occur by referendum) is likely to increase.  Examples like Nick Casmirri's (and also Sam Dastyari spending $25,000 on legal fees) suggest that the present situation is confusing and can be very onerous for some candidates.